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Legal topic overviews: possession of cannabis for personal use

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Analysis

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The legal status of cannabis for personal use is one of the most controversial policy issues in the European Union. Although cannabis is a classified narcotic drug placed under control by the United Nations and by all EU Member States, the measures adopted to control it at national level vary considerably, as shown in the table below.

Cannabis extracts — marijuana, hashish and cannabis oil — are classified as narcotic drugs under both Schedules I and IV of the 1961 United Nations Single Convention on Narcotic Drugs. Art. 36 requests State Parties to “adopt such measures as will ensure that …possession… of drugs contrary to the provisions of this Convention… shall be punishable offences when committed intentionally...”. The active principles of cannabis, the cannabinoids THC and specifically dronabinol (delta-9-THC), are classified as psychotropic substances under Schedules I and II respectively of the 1971 United Nations Convention on Psychotropic Substances. Art 22 of this echoes the terms of the 1961 Convention above, stating that “each Party shall treat as a punishable offence, when committed intentionally, any action contrary to a law or regulation adopted in pursuance of its obligations under this Convention… “. Finally, the United Nations Convention Against Illicit Traffic of 1988, Art. 3 requests establishment of a criminal offence for possession of drugs for the purposes of trafficking (Art. 3.1(a)(iii)), and for the possession for personal consumption (Art.3.2).  This latter has been the subject of a wide range of interpretations and analyses; see ELDD’s Legal Reports for example the EMCDDA thematic paper “Illicit drug use in the EU: legislative approaches”, section 1, and Chapter 7 of A Cannabis Reader, EMCDDA Monograph 8; Cannabis Control in Europe.

The EU Member States have transposed the UN precepts concerning the penal or administrative control of cannabis, and have applied them according to their own local or regional circumstances. This has resulted in a heterogeneous 'legal map' regarding cannabis offences: some countries or regions tolerate certain forms of possession and consumption; other countries apply administrative sanctions or fines; while still others apply penal sanctions. Those laws drafted not long after the UN Convention of 1961 may reflect its concentration on cannabis, coca and opium as well as providing more general drug control measures for all narcotic substances.

Within the EU, the Council Resolution on cannabis adopted in 2004 (CORDROGUE 59) requests Member States to take measures to discourage personal use of cannabis, such as enhancing the communication with cannabis users especially the very young, to inform and train parents, teachers, media professionals, prison staff and police officers, and to promote networking among health and education professionals on cannabis-related issues. The Council also invites Member States to take measures against Internet sites providing information on cultivation and promoting use of cannabis.

The accompanying table outlines the legal status of cannabis when used or cultivated/possessed for personal use in the different countries, except where stated. Most information on trafficking can be found in the Topic overview on trafficking.

Despite the different legal approaches towards cannabis, a common trend can be seen across the Member States in the development of alternative measures to criminal prosecution for cases of use and possession of small quantities of cannabis for personal use without aggravating circumstances. Fines, cautions, probation, exemption from punishment and counselling are favoured by most European justice systems. It is of interest to note that cannabis in particular is frequently distinguished from other substances and given special treatment in these cases, either in the law, by prosecutorial directive, or by the judiciary. Nevertheless, police arrests for drug offences, mainly those involving cannabis and mainly use-related offences, are increasing in several countries – see the EMCDDA Statistical bulletin for further details.

For the legal status of medicinal cannabis, see also the 2002 report “Medicinal Cannabis and derivatives: a legal analysis of the options, their limitations, and current practice in the EU” in the ELDD’s Legal reports section.

Comparative table by country

Table: legal status of cannabis when used or cultivated/possessed for personal use in the different countries
Country Offences and penalties related to personal use Legislation Level of prosecution Distinguished from other substances? How? Notes
Belgium

Possession of cannabis for personal use is prohibited, but receives a police warning if without nuisance. Offences causing public disorder receive 3 months to 1 year in prison.

Loi 24 février 1921, Art 2ter; Arrêté royal de 31 décembre 1930, Art 28; Directive de 17 avril 1998; Directive ministérielle de 16 mai 2003 ; Directive commune de la Ministre de la Justice et des autorités judiciaires du 25 janvier 2005

2003 Directive says maximum for personal use is 3 g of cannabis or one plant.

Distinguished by law (Law of 1921, Art 11)

2003 law stated that cannabis-related offences are specifically punishable by a police fine if non-problematic and for personal use, but this concept was annulled as unclear by the Constitutional Court.

Czech Republic

As with all drugs, administrative offence if quantity is small, subject to police fine or warning. Possession of a quantity “greater than small” of cannabis or other substances containing THC is punished with up to 1 year imprisonment (possession of other drugs punishable by up to 2 years).

Misdemeanour Act s.30(1)(j); Penal Code s.284(1).

15 g of dry matter for marijuana and 5 g of hashish; Government Decree n. 467/2009 effective from January 2010.

Distinction by law for crimes of personal possession.

Before January 2010, the old Penal Code made no distinction between cannabis and other substances.

Denmark

As with all drugs, cannabis-related offences are punishable by a fine or imprisonment for up to 2 years

Euphoriant Substances Act s.3

A fine is the standard response. For first offence possession of up to 10 g hash or 50 g marihuana, the Chief Public Prosecutor permits a warning in limited circumstances.

Only distinguished in Prosecutor Directive; in limited circumstances, repeated warnings are permitted only for cannabis possession.

In June 2004, the law changed to state that warnings for cannabis should only be given in limited circumstances; a fine would be the norm.

Germany

As with all drugs, cannabis-related offences are punishable by up to 5 years' imprisonment or a fine; punishment can be remitted in cases of 'insignificant quantities' for personal use

BtMG s.29, s.31a; Constitutional Court decision of March 1994

The Constitutional Court stated that even if penal provisions for the possession of cannabis are in line with the constitution, the Länder should waive prosecution in minor cases when possession of cannabis is for personal use. Each Land has determined what it considers to be an 'insignificant quantity' of cannabis.

Distinguished by Constitutional Court decision. Also judiciary; in practice, exemptions of BtMG are applied mainly for cannabis.

Possession of a small quantity of all drugs is a criminal offence, but is not prosecuted or punished when:

  • there is no harm to third persons;
  • minors are not involved;
  • the substance is for personal use;
  • the offence involves an 'insignificant quantity'
Estonia

As with all drugs, it is a misdemeanour to use or handle a small quantity, punishable by police fine or 30 days’ administrative arrest. It is a criminal offence to possess more than a small quantity (a large amount), punishable by up to 10 yrs.

 

Narcotic Drugs and Psychotropic Substances Act 1997, Art. 31, Art.151; Penal Code, Art.184

Since 1 July 2005, "large amount" is defined by the Narcotic Drugs and Psychotropic Substances Act (Art. 31) as a quantity of substance which is needed to intoxicate at least ten persons.

 

The Prosecutor's Office guidelines of 22 July 2005 define it as more than 20 g of marihuana or 10 g of hashish.

No distinction

The new article in the Act defining a quantity (of any drug) does not take into account the amount of pure substance in mixtures (e.g, tobacco+marihuana), but only the estimated number of doses (e.g, cigarettes) which could have been prepared from the given amount of confiscated substance.

Greece

As with all drugs, cannabis-related offences of purchase, possession, as well as cultivation for exclusive personal use, are punishable by up to one year's imprisonment. Reduction/suspension or conversion of the penalty is foreseen in case of small quantity.

Law 3459/2006 Art.29(1), (4)

 Resin 2.5g, herbal 20g - Law 3727/2008 Art 15.

Distinguished in law: cultivation of cannabis only may also be included as an offence of personal possession

 There will be no entry in the criminal record if there is no same offence within 5 years (Art 29(2)).

Spain

As with all drugs, cannabis-related offences, such as possession and use in public places, are punishable by administrative sanctions

Law 1/1992, Art 25-28.

Judicial practice suggests that punishable possession comprises amounts exceeding 40 g of hashish.

No distinction

 

France

As with all drugs, use is punishable by a fine or imprisonment for up to one year. From 2007 a drug awareness course (stage de sensibilisation) may be ordered, for which the user might have to pay up to 450 Euro if required by the judge or prosecutor.

Code de la santé publique Art.L.3421-1; Penal Code Art. 222-37; R 131-35 and on. Ministry of Justice Circular of 9 May 2008

In case of occasional consumers (no problematic drug addicted) and small quantities of illicit substances, the drug awareness course should be the main penal response to inform about the risks and social consequences of drug use, as underlined in the Circular of 9 May 2008.

No distinction. But the Circular 2008 underlines the necessity to take into consideration the kind of drug when sentencing.

French law does not officially recognise the motives for possession. But the Circular 2008 underlines the necessity for a systematic and differentiated penal response, taking into consideration the type of drug, consumption (occasional or problematic), supply, family situation, age etc.

Ireland

Specifically, possession of cannabis for personal use is punishable by a fine on the first or second conviction. From the third offence onwards, the offender can incur prison sentences of up to 1 year (summary) or up to 3 years (on indictment), or a fine, or both.

Misuse of Drugs Act ss.3, 27(1)(a)

The fine follows a criminal conviction in court.

Distinction by law

 

Italy

As with all drugs, cannabis-related offences (such as possession for personal use) are punishable by administrative sanctions from the second offence onwards.

DPR 309/90, Art. 75.

THC 1 g;DPR309/90 Art 72-75; Ministry of Health Decree of 11 April 2006<

No distinction.

 

A warning is possible only in case of a particularly minor violation and on the first occasion, with the presumption that the offender does not intend to repeat the offence in future - DPR 309/90, art. 75 (14).The warning is always given in case the other administrative sanctions are not applicable.

Cyprus

Cannabis is a Class B substance – life imprisonment is possible for use and maximum 8 years for possession (maximum 2 yrs for first offence for under 25 yr old).

The Narcotic Drugs And Psychotropic Substances Law of 1977, s.6 (offence), s.30A (quantities), Third Schedule (penalties)

 

3 plants or more, or 30 g or more of cannabis products, are presumed to be for supply.

Distinction by law

In practice, warning may be given to a minor first offender.

Lithuania

As with all drugs, misdemeanour to possess a small quantity without intent to supply, punished by fine up to 6500 litas (approx €1800), arrest of 10-45 days, or restriction of freedom 3 mths-2 years.  Crime to possess more than a small quantity without intent to supply, punished by fine up to approx €3700, arrest of 15-90 days, or up to 2 years’ prison.

[Code of Administrative Offences Art. 44, overruled by Penal Code Art 259(2)]; Penal Code, Arts.259; Order of the Minister of Healthcare regarding the approval of the list of narcotic and psychotropic substances (6 January 2000 No 5, as amended; Order No V-314 of the Minister of Healthcare of 23 April, 2003 (quantities)

Less than 5 g of herb, 0.25 g of resin is a misdemeanour.

No distinction

 

Latvia

As with all drugs, administrative offence to use or possess a small quantity. Punished by a fine up to LVL 75 (EUR 110) or administrative arrest for up to 15 days. Under the Criminal law, possession of small amounts without the purpose of sale, or use repeated within one year, may be punished by up to 2 years.

Code of Administrative Offences, para.46; Criminal Law s.253. Up to 5g cannabis plants, 1g herbal cannabis, 0,1g cannabis resin. No distinction  
Luxembourg

Specifically cannabis-related offences, including use, without aggravating circumstances are punishable by fine from €250 to €2500

Law 19 February 1973 modified by law 27 April 2001, Art.7

Using cannabis in front of a minor, a school or in the workplace can lead to prison sentences (from 8 days to 6 months), use with a minor also participating can lead to prison sentences from 6 month to 2 years and/or is punishable by fine from EUR 500 to EUR 25 000

Distinction by law

The distinction for cannabis was made in 2001 (Art7 A: other drugs, and B: cannabis and cannabis products). Before this, all drugs were treated equally.

Hungary

As with all drugs, misdemeanour to possess a small quantity, punishable by up to two years’ prison, or, if by an addict, up to one year's imprisonment, community service or a fine. There may be exemptions from punishment if the offender takes part in a treatment programme.

Penal Code (Act IV of 1978), s.282, s.282/C; Statutory rule 5/1979 s. 23

Up to 1g of THC as active principle

No distinction

 

Netherlands

Possession of any controlled drug is a criminal offence, with possession of up to 30g of cannabis legally punishable by imprisonment for one month and/or a fine of €3350.

Opium Act, Arts. 3C, 11(1); Opium Act Directive

The Directive states that investigation and prosecution of possession of cannabis for personal use (up to 5g) have the lowest judicial priority; the sale of up to 5g of cannabis per transaction in 'coffee shops' is generally not investigated (a transaction includes all sales and purchases made by a single coffee shop in the same day with the same buyer).

Distinction by law

Sale, production and possession of up to 30 g of cannabis are punishable by imprisonment for one month and/or a fine of €3 350; for more than 5 cannabis plants, the maximum penalties are 6 years' imprisonment.

Austria

As with all drugs, cannabis-related offences are punishable by up to six months' imprisonment. If certain conditions are fulfilled, reports must be withdrawn in cases involving small quantities. According to the law, the conditions for withdrawal of reports in connection with 'first consumers' of cannabis are easier to fulfil (no health report is necessary).

SMG, s.35(4)

 

Distinction by law

 

Poland

As with all drugs, possession is criminal offence, punishable by up to 3 yrs’ imprisonment.  In a case of “lesser gravity”, the punishment is imprisonment for up to one year, limitation of liberty or a fine.

Act on Counteracting Drug Addiction of 29 July 2005, Art.62.1

Cannabis offences are likely to be interpreted as of “lesser gravity”.

No distinction as far as the Act is concerned. Distinction possible by court decision when interpreting “lesser gravity”.

 

Portugal

As with all drugs, cannabis-related offences such as use, acquisition and detention may receive an administrative sanction.

Law 30/2000, Art.2, n.º 1

Cases are assessed and decided at a Commission for Dissuasion of Drug Dependence (Law 30/2000, Art. 5, nº 1). Treatment is offered for situations involving problematic use/abuse of cannabis and administrative penalties for up to 10 daily doses, ie up to 25g of marijuana or 5 g of hashish may be applied (Law 30/2000, Art. 2, nº2 and Governmental Decree 94/96)

Distinction by law – the administrative sanction varies according to the class of drug (Law 30/2000, Art. 15, nº4 c) and Art.16)

 

Slovak Republic

As with all drugs, possession for personal use is a criminal offence, punishable by up to up to 3 years’ prison, or up to 5 years for a larger amount. Home imprisonment or community service of 40-300 hours are also possible.

Penal Code, s.171, s.135

Amounts are defined as up to 3 doses, or up to 10 doses for a “larger amount”.

According to the Penal Code, the court shall conditionally waive a penalty shorter than 2 years for any offence, if the offender and his prior behaviour and other circumstances gives assurance that the purpose of a penalty will be fulfilled without the offender's staying in prison

No distinction

 

Slovenia

As with all drugs, possession is a minor offence coming under the Misdemeanours Act, punishable by a fine of SIT 50 000-150 000 or up to 30 days’ imprisonment. Possession of small quantities for one-off personal use is a lesser offence punishable by a fine of EUR 42-208.

Production and Trade in Illicit Drugs Act, Art 33

 

No distinction

In line with the Misdemeanours Act, imprisonment for minor offences has been abolished.

 

Finland

As with all drugs, cannabis-related offences, such as use, possession or cultivation, are punishable by a fine or up to two years' imprisonment.   Possession of a small amount for personal use is punished by a fine or up to 6 months’ imprisonment.

Penal Code Chapter 50:1 and 50:2a

 

No distinction

Finnish law recognises the concept of a 'very dangerous drug', which refers to a narcotic drug that may cause death by overdose or serious damage to health. This definition is not normally applied to cannabis

Sweden

As with all drugs, cannabis-related offences, such as use, are punishable by imprisonment for up to 3 years. If judged petty, according to the nature of the substance etc, up to six months or a fine.

Narcotic Drugs Punishments Act (1968:64), ss.1-2

Users are usually fined.

No distinction.

 

United Kingdom

Cannabis-related offences, such as possession, are punishable by up to five years' imprisonment. For adults, police may warn or issue a penalty notice for disorder instead of prosecuting, as part of a three-point escalation process for cannabis possession for personal use.

Misuse of Drugs Act 1971 s.5; ACPO Cannabis Enforcement Guidance

Whilst arrest is always the first presumption, an adult offender is likely to receive a cannabis warning for a first possession offence, and a penalty notice for disorder for a second offence. A third offence will result in arrest and consideration of likely further action including caution, conditional caution or prosecution. All subsequent offences are likely to result in arrest. If any aggravating factors are present the police will escalate the response accordingly. Ultimately, decisions as to the most appropriate disposal for an offender are made by the police and prosecution service.

Distinction by law (class of substance) and police guidance (specific to cannabis)

In January 2009 cannabis was reclassified to Class B.

Croatia

As all the other drugs, the possession of cannabis is punished as administrative offence with a fine (from €140-14 000) and by the Criminal Code with a maximum penalty of one year in prison.

 

Law on Combating Drugs Abuse, Criminal Code (art. 173(1))

In cases of smaller quantities of drugs for personal use (and if it is a first criminal offence), according to the Article 28 of the Criminal Law, on the decision by State Attorney the criminal charge can be dropped and minor offence proceedings initiated. In this case, punishment can be fine, warning, or treatment. Use in public is punishable by administrative sanctions, fines € 55 to € 200.

No distinction.  
Norway

Cultivation, possession and use of cannabis are regarded as criminal offences

Act on Medicinal Products, ss.24 and 31 (2), Regulation Relating to Narcotics etc. s.4 and Civil Penal Code s. 162.

Based on a directive from the Director of Public Prosecutions, fines are usual for use and for possession of max. 5 g cannabis. Larger quantities or repetition of similar offence within short time (3 months) are normally prosecuted.  

No distinction

 

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Page last updated: Thursday, 26 January 2012